Opinion
39811.
DECIDED MARCH 13, 1963.
Action for damages. Fulton Civil Court. Before Judge Parker.
Paul C. Myers, Arthur A. Morrison, for plaintiff in error.
Guy R. Dunn, contra.
1. The superior courts and other courts exercising similar powers retain plenary control over judgments entered during the term in which they are entered, and may, in the exercise of a sound legal discretion, revoke or modify them. Thus, where a motion to vacate a judgment made during the term at which it is entered is not disposed of until during a succeeding term, at which an order denying the motion is entered, the court has the same power and control over that order during the term in which it is entered.
2. A showing that a party and his counsel failed to appear when his case was regularly scheduled for trial due to some inadvertence, oversight or mistake does not afford sufficient cause for the exercise of a discretion in vacating the judgment.
DECIDED MARCH 13, 1963.
J. A. Godby brought suit in the Civil Court of Fulton County against Andrew L. Hein for damages arising out of an automobile collision. Defendant filed his answer and a cross-action and the case came on regularly for trial on April 24, 1962, but on call of the case neither the defendant nor his counsel appeared. After hearing plaintiff's evidence the judge, presiding without a jury, entered judgment in plaintiff's favor and against the defendant. During the April term of court the defendant moved to set aside the judgment alleging that "by some inadvertence, mistake, oversight, or reason unknown to [defendant or his counsel] that said case was not discovered on the published calendar of the Fulton Daily Report, the newspaper who has the official duty of notification of said cases." Plaintiff demurred generally to the motion and hearing was had thereon and the matter taken under advisement until July 5, 1962 (during the July term) when an order was entered overruling the motion. On July 20 a "motion for rehearing" was filed by the defendant, and upon a further hearing and consideration of the matter an order was entered August 2, 1962, vacating the previous order and setting aside the judgment. To that order the plaintiff excepts.
Obviously treated by the court here as a motion to vacate or set aside the judgment of July 5.
1. A question presented here is whether the discretion of the judge extended beyond the May term during which the motion to vacate the judgment was filed, and if so, whether that discretion ended with the signing of the order overruling the motion during the July term. We conclude that since the motion was not disposed of during the May term the jurisdiction of the court over the matter continued until final disposition was made, and further that since the order of July 5, 1962, was made during the July term of court it might, for sufficient cause, be set aside at any time until the end of that term. "Until the end of the term at which rendered, judgments are `in the breast of the court,' and may be set aside or modified at the judge's discretion." Abe Gellman Co. v. Jaco Pants, Inc., 107 Ga. App. 1 ( 129 S.E.2d 199). "The plenary control of the court over orders and judgments during the term at which they were rendered extends to all orders and judgments save those which are founded upon verdicts." Whitlock v. Wilson, 79 Ga. App. 747 ( 54 S.E.2d 474). We are not unmindful of the apparent conflict between Whitlock and Carolina Tree Service, Inc. v. Cartledge, 96 Ga. App. 240 (7) ( 99 S.E.2d 705), but since Whitlock was a case decided by the full court (five judges concurring and one dissenting) and is the older decision, we think that Carolina Tree Service must yield to it. Code Ann. § 24-3501. Moreover, it appears from headnote 8 of Carolina that the statement in headnote 7 that "Where the merits of the case are tried and evidence presented to the judge sitting as a jury and a trior of facts, the rules applicable to cases involving jury verdicts should obtain . . ." is obiter.
The July term of court, at which the order overruling the motion to vacate was entered had not expired when the further order (pursuant to notice and hearing) vacating it and sustaining the motion was entered on August 2. Thus the action was within the plenary power and jurisdiction of the court.
2. However, the discretion which the judge is empowered to exercise is a legal one and must be exercised within the standards of Athens Leather Mfg. Co. v. Myers Co., 98 Ga. 396 ( 25 S.E. 503); Blanch v. King, 202 Ga. 779 ( 44 S.E.2d 779); Morris v. Morris, 82 Ga. App. 384 ( 61 S.E.2d 156); American Mut. Liab. Ins. Co. v. Satterfield, 88 Ga. App. 395 (2), 398 ( 76 S.E.2d 730); Carolina Tree Service, Inc. v. Cartledge, 96 Ga. App. 240, supra, General Finance Corp. v. Kelsey, 106 Ga. App. 108 (2) ( 126 S.E.2d 261), and others similar.
In support of his motion to vacate defendant presented affidavit from his counsel that "due to some oversight, inadvertence, or mistake . . . he did not ascertain the date of said trial, that he was ready, now stands ready and fully believes that the defendant has a good and legal defense," and one from his counsel's secretary that "she used ordinary care in checking the Fulton Daily Report Calendar and that she did not ascertain or see the said case listed in said calender, and that she did not ascertain the trial date of said case and did not notify the defense counsel that said case was on for trial . . . and that due to some mistake, inadvertence, or oversight, she did not ascertain the trial of said case." This showing was not sufficient to authorize a vacating of the judgment. "The law rewards diligence, but is slow to harken to the prayer of the slothful. The vigilant man does not need to make excuses, but where one has sat idly by and overslept his rights and permitted a judgment to be taken against him, which he might have prevented by the exercise of the slightest diligence, the law is not disposed to grant him relief. Heitmann v. Commercial Bank, 6 Ga. App. 584 (10) ( 65 S.E. 590)." Florida Central R. Co. v. Luke, 11 Ga. App. 290, 294 ( 75 S.E. 270).
There is no room for the exercise of any legal discretion in setting aside a judgment merely because counsel has, due to some oversight, inadvertence or mistake, failed to appear on behalf of his client, nor can it be aided by a showing that his secretary failed to ascertain, from an examination of the published calendar, that it was scheduled for trial and notify him. "It is likewise a well-established rule that counsel and the parties to a cause must keep themselves informed as to the progress of their case and no excuse will avail them if they permit a right to lapse or a judgment to go by default through their simple negligent failure to apprise themselves of the court's actions in connection with their cases. . ." American Mut. Liab. Ins. Co. v. Satterfield, 88 Ga. App. 395, 398, supra.
Thus it follows that there was an abuse of discretion here in the vacating of the judgment.
Judgment reversed. Carlisle, P. J., and Russell, J., concur.